Beach v. Woodward & Lothrop, Inc.

• Decision Date: 15 August 1973
• Docket Number: No. 797,797
• Citation: 308 A.2d 439,18 Md.App. 645
• Parties: Agnes M. BEACH v. WOODWARD & LATHROP, INC.
• Court: Court of Special Appeals of Maryland

Page 645

18 Md.App. 645

308 A.2d 439

Agnes M. BEACH v. WOODWARD & LATHROP, INC.

No. 797.

Court of Special Appeals of Maryland.

Aug. 15, 1973.

Rex L. Sturm, Rockville, with whom was Brown & Sturm, Rockville, on the brief, for appellant.

Francis X. Quinn, Rockville, for appellee.

Argued before THOMPSON, POWERS and MENCHINE, JJ.

POWERS, Judge.

Agnes M. Beach filed suit in the Circuit Court for Montgomery County against Woodward & Lothrop, Inc. claiming damages for injuries she alleged she sustained in a fall on an escalator in the defendant's department store.

The case went to trial before a jury and ended at the close of the plaintiffs evidence when the trial judge granted the defendant's motion for a directed verdict.

Mrs. Beach appealed from the judgment thereafter entered against her. She complains that the court did not apply the proper principles of law in ruling on the motion, and that a previous interlocutory ruling on her motion for discovery of documents was erroneous.

Appellant testified that on 22 February 1972 she went to the Wheaton Plaza store of Woodward & Lothrop, Inc., in the company of her daughter, her small granddaughter, and another young woman. After doing some shopping on a lower level, she wanted to go to an upper level, and took an escalator. Her granddaughter was with her. The other two women were near the bottom of the escalator. Appellant's entire case stands or falls on these words in her testimony:

"I went up half way and the thing stopped still. It gave a jerk and it threw me backwards."

A moment later in her testimony appellant again described what happened:

"I had my hand on the banister going up and the thing stopped. I stood there and all of a sudden it made a jerk and threw me backwards."

When asked about the period of time the escalator was stopped, she said:

"I would say it was for a second or two. It just stopped and stood there and all of a sudden it jerked and threw me backwards."

Appellant's daughter, Frances Merson, said that they were walking toward the escalator. She said, "my mother and my daughter was on the escalator and fell". It came to her attention when her little girl screamed. The escalator was moving. She grabbed her daughter off and went back to help her mother up. At that time a saleslady stopped the escalator. Mrs. Merson identified a description of the event handwritten by her which said:

"Mrs. Agnes Beach had taken the hand of my four year old daughter and had stepped on the escalator and had travelled up about eight steps and as I was about to step on the escalator I heard my daughter scream and looking up I saw them falling backward."

Kathy Ange, who lived with appellant, was near the escalator looking at a rack of blouses. She said Mrs. Merson was with her. She heard the little girl scream, and looked and saw her at the bottom of the escalator. Mrs. Beach was "right up here" on the escalator, falling down. It was still moving. Somebody stopped the escalator.

After the testimony of two physicians the appellant rested her case. Appellee's motion for a directed verdict was granted.

In Buchanan v. Galliher and Harless, 11 Md.App. 83, at page 87, 272 A.2d 814 at page 817 we said:

"When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made * * *."

In Armstrong v. Johnson Motor Lines, 12 Md.App. 492, at page 499, 280 A.2d 24, at page 28 we said:

"At that stage of a case when it cannot be said that everything relative to it is known, an inference of negligence, deducible from the facts and circumstances, may be permitted under the doctrine of res ipsa loquitur, and may aid the plaintiff in making a sufficient prima facie showing to survive a motion for directed verdict. If the unknowns are not later supplied, that same inference may be considered by the jury in determining whether the defendant was negligent. If, on the other hand, later evidence supplies facts in place of the unknowns, the jury no longer needs the aid of an inference to weigh the credibility of those facts, and to determine whether the facts which it accepts do or do not amount to negligence."

A clear and excellent discussion of res ipsa loquitur is contained in Blankenship v. Wagner, 261 Md. 37, at page 42, 273 A.2d 412, at page 415, where Judge Finan said for the Court:

"In order to invoke the doctrine of res ipsa loquitur in Maryland certain circumstances must be shown by the evidence. First, it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant's negligence. Williams v. McCrory Stores Corp., 203 Md. 598, 601, 102 A.2d 253 (1954); Cf. Short v. Wells, 249 Md. 491, 496, 240 A.2d 224 (1968). Second, the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant's exclusive control. Smith v. Kelly, 246 Md. 640, 644, 229 A.2d 79 (1967). The third element is that it must appear from the evidence that no action...